Tez v Longley and DPP

Background 3 At or about 7.00pm Mr. Assaf was allegedly stabbed and wounded at his home at George Street, Waterloo. The victim later identified Nicole Gertenaar and a male person, said to be the plaintiff in these proceedings, as his assailants. Two persons who witnessed the attack provided police with a description of the male attacker, broadly consistent with that of Mr. Tez. The complainant, Mr. Assaf, apparently knew Mr. Tez and identified him as the male assailant accompanying Ms Gertenaar.

4 Mr. Tez was subsequently arrested and charged with an offence under s 35(1)(b) of the Crimes Act 1900 (NSW), on 30 May 2003. 5 The alleged offence is an indictable one, but it can be dealt with summarily under the Criminal Procedure Act 1986 (NSW). However, the Director of Public Prosecutions has elected to deal with the matter on indictment: Schedule 1, Table 1. 6 The plaintiff accused made an application, pursuant to s 48E of the Justices Act 1902 (NSW), now repealed, to cause 3 witnesses and the alleged victim of the crime charged, to be available for cross-examination at the committal proceedings in respect of that charge. Although repealed, the provisions of the Justices Act 1902 still apply in Mr. Tez's case, because he was charged for the offence in question before 7 July 2003: Schedule 2, clause 32(2) Criminal Procedure Act 1986 (NSW). 7 On 20 October 2003, an officer from the Office of the Director of Public Prosecutions consented to Mr. Tez's application requiring the 3 witnesses to be available for cross-examination at the committal proceedings, but did not consent to the alleged victim, Mr Assaf, being similarly made available: s 48E(1A) Justices Act 1902 (NSW). 8 After argument from both parties, on 19 November 2003 Magistrate Longley refused Mr. Tez's application under s 48E of the Justices Act 1902 (NSW) in respect of the alleged victim. He gave brief reasons for his decision. It is from this decision that the plaintiff now appeals.

9 The plaintiff relies on 3 grounds in support of his appeal: 1) Magistrate Longley failed to consider any evidence in support of the application; 2) Magistrate Longley erred in law in his refusal of the plaintiff's application; and 3) Magistrate Longley failed to give adequate reasons for his refusal of the plaintiff's application.

Orders Sought 10 The plaintiff seeks a declaration that Magistrate Longley erred in law in failing to require Mr. Assaf to be available for cross-examination at the committal proceedings. 11 The plaintiff further seeks an order that Magistrate Longley's decision on the application under s 48E of the Justices Act 1902 (NSW) be quashed. 12 The plaintiff finally seeks an order in the nature of mandamus, remitting the matter to Magistrate Longley to be determined in accordance with law. Section 48E Justices Act 1902 (NSW) 13 The plaintiff made an application under the Justices Act 1902 (NSW) for a direction requiring the alleged victim, Mr. Assaf, to be available for limited cross-examination on a number of proposed areas, which were outlined in the plaintiff's written submissions to the learned Magistrate: affidavit of HC Langley sworn 30 January 2003, Annexure B. 14 Section 48E relevantly provides: (1) For the purposes of committal proceedings, the Justice or Justices may give a direction requiring the attendance at the proceedings of a person who has made a written statement for the purposes of this Subdivision. The direction may be given on the application of the defendant or informant or on the motion of the Justice or Justices. (1A) The Justice or Justices must give the direction if an application is made by the defendant or the informant and the other party consents to the direction being given. (2) In any other circumstance, the Justice or Justices may give the direction only if: (a) in the case of a witness in proceedings that relate to an offence involving violence who is the alleged victim of the offence - the Justice or Justices are of the opinion that there are special reasons why, in the interests of justice, the witness should attend to give oral evidence, or (b) in any other case - the Justice or Justices are of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. (3) - (6) … (7) If the Justice refuses or Justices refuse to give a direction under subsection (1), the Justice or Justices must give reasons for doing so. (8) The regulations may make provision for or with respect to the determination of special reasons under subsection (2) (a) and the determination of substantial reasons under subsection (2) (b). (9) In this section: offence involving violence means any of the following offences: (a) - (c) …

(d) an offence under section 35 (1)(b) of the Crimes Act 1900 (infliction of grievous bodily harm), (e) - (g) … This legislative provision, enacted in 1996, is clearly intended to strike a balance between the purely 'paper' committals which occur in some jurisdictions and the full dress rehearsal of the trial which had traditionally occurred in New South Wales: DPP v Losurdo (1998) 44 NSWLR 618 per Priestley, Handley and Sheppard JJA. As I mentioned above, the Justices Act 1902 (NSW) has since been repealed and the relevant provision has been replaced by s 93 of the Criminal Procedure Act 1986 (NSW). 15 It is common ground that the offence for which the plaintiff is charged, infliction of grievous bodily harm, is a violent offence for the purposes of the section: s 48E(9)(d) Justices Act 1902 (NSW). 16 The discretion to allow an application under s 48E is exercisable by a Magistrate as apart of his or her administrative function in respect of committal proceedings: Lamb v Moss & Brown (1983) 49 ALR 533 at 559 per Bowen CJ, Sheppard and Fitzgerald JJ. 17 For the plaintiff to succeed in his application, he must establish that the Magistrate actually failed to exercise his jurisdiction; error of law, in itself, will not suffice: Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 per Jordan CJ. 18 The power conferred by the section is discretionary and should only be exercised, in respect of calling alleged victims, where there are special reasons why, in the interests of justice, the victim should attend to give oral evidence: s 48E(2)(a). However, where such special reasons are found, the Magistrate is required to exercise the authority under s 48E and make the order requiring the complainant to attend: O'Hare v DPP [2000] NSWSC 430 at [8] - [17] per O'Keefe J.

Special Reasons 19 The requirement of special reasons is a more stringent test than that of substantial reasons required by s 42E(2)(b): DPP v Losurdo (1998) 44 NSWLR 618 at 623 per Priestley, Handley and Sheppard JJA. Cross-examination for the purposes of discrediting the complainant does not constitute a special reason for the purposes of the Act as was emphasised in R v Kennedy (1997) 94 A Crim R 341 at 352 per Hunt CJ at CL: Something more than the disadvantage to the accused from the loss of the opportunity to cross-examine the complainant at the committal must be shown. There must be some feature of the particular case by reason of which it is out of the ordinary and which establish that it is in the interests of justice that the complainant be called to give oral evidence. Two cross-examinations are not justified simply in order to find material in order to discredit the witness at the trial. 20 The totality of the relevant issues in each case should be considered in determining whether or not the reasons are special for the purposes of the Act: Lawler v Johnson & Anor (2002) 56 NSWLR 1 at 10 per O'Keefe J. Hunt CJ at CL with whom Smart and Grove JJ agreed, emphasised the need for individual consideration of each case in R v Kennedy (1997) 94 A Crim R 341 at 352: What are "special reasons" and what are not will vary from case to case and cannot be defined in advance. The decision should not be approached an unduly restrictive way; what must be shown is that such evidence will serve the true purposes of committal proceedings, which exists in order to achieve a fair trial in the court. [citations omitted] 21 The fact that the Crown case relies heavily upon the evidence of the alleged victim, does not, of itself, give rise to special reasons for the purposes of the section: R v Anderson (CCA(NSW), 15 February 1994, unreported) per Gleeson CJ, with whom Finlay and Abadee JJ agreed.

22 In O'Hare v DPP [2000] NSWSC 430, O'Keefe J, relying on Studdert J in B v Gould and Director of Public Prosecutions (1993) 67 A Crim R 297 at 303, whilst thoroughly discussing the operation of s 48E, conveniently summarises at [51] the considerations to be taken into account in determining whether or not special reasons arise in a particular case: In summary the decided cases in New South Wales establish and in Victoria and South Australia indicate that the facts or situations that constitute "special reasons" should not be confined by precise legal definition, are not a closed category, should not be approached in an unduly restricted way and need to be: · Special in relation to the particular case; · Solid, that is substantial, in nature; · Not common or usual; · Out of the ordinary; · Unusual or atypical; · Clearly distinguishable from the general run of cases;

and must be relevant to the interests of justice. In this regard relevance to the interests of justice will involve a consideration of the interests of the defendant and the interests of the complainant as well as other wider considerations of justice. In this context: · the strength or weakness of the prosecution case; · that there will be a real risk of an unfair trial should oral evidence not be permitted; · the prospect of prejudice to the defendant beyond the ordinary in such event; · the real possibility that a defendant may not be have to stand trial if oral evidence is permitted; · the existence of inconsistent statements by or different versions from a complainant or witness; will be material considerations in the exercise of function by a Magistrate under s 48E(2)(a). [citations omitted]

23 The plaintiff contends that the Crown case against Mr. Tez is not strong. The Crown disagrees with this proposition, although it is agreed by the parties that this is a relevant consideration in the determination of an application under s 48E of the Justices Act 1902 (NSW). Declaration 24 The plaintiff has sought a declaration pursuant to s 75 of the Supreme Court Act 1970 (NSW). 25 The jurisdiction of this court to order declaratory relief, in respect of a Magistrate's decision in a committal proceeding, is a matter of discretion, to be determined in the circumstances of each case: Bacon v Rose [1972] 2 NSWLR 793 at 796 per Street CJ in Eq. However, the High Court has held that the grant of declaratory relief in relation to committal proceedings should only occur where there are most exceptional or special reasons so to avoid fragmentation of the criminal process: Sankey v Whitlam (1978) 142 CLR 1 at 25-26 per Gibbs ACJ and at 82 per Mason J. 26 The court, therefore, has jurisdiction to intervene in the proceedings of an inferior tribunal, such as is the case here, but should not do so lightly.

Order in the nature of mandamus 27 The court is empowered to grant relief in the nature of mandamus pursuant to s 69(1)(c) of the Supreme Court Act 1970 (NSW). However, the court will only do so where there has been a constructive failure, on the part of the Magistrate, to exercise the Court's jurisdiction. The correctness, or otherwise, of the Magistrate's refusal of the accused's application is not the question to be considered in determining whether an order in the nature of mandamus is called for: The King v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 243. The real question is whether or not the decision was a correct exercise of the tribunal's power. The decision of Jordan CJ in ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 eloquently expresses this notion at 420: …the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply "a wrong and inadmissible test," or to "misconceive its duty," or "not to apply itself to the question which the law prescribes," or "to misunderstand the nature of the opinion which it is to form," in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as being purported and not in real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law. [citations omitted] 28 In circumstances where I, or another judicial officer may form a different opinion to the learned Magistrate in respect of the application, on the same facts, this will not constitute a jurisdictional error if the Magistrate determined the issue in accordance with the relevant law: McKirdy v McCosker [2002] NSWSC 197; (2002) 127 A Crim R 217 at [4] per Howie J: The question for this Court is not whether the Magistrate was wrong in refusing to give the direction sought, even if this error involved a misconstruction of the section, but whether he failed to exercise the jurisdiction conferred upon him by the section or so misconceived the nature and extent of the jurisdiction or the manner in which it was to be exercised that his purported exercise of the jurisdiction was in truth no exercise at all.

29 The Court is, therefore, required to make a finding of jurisdictional error before remitting the matter to the Magistrate for re-consideration in accordance with the law.

30 The plaintiff argues that the Magistrate failed to give adequate reasons for his decision to refuse the application. Failure to provide adequate reasons is an error of law, because such a failure makes it impossible for the appellate court to determine whether or not the decision was based on an error of law, so as to give effect to the accused's statutory right of appeal: Pettitt v Dunkley [1971] 1 NSWLR 376 at 381 - 383 per Asprey JA and 386 - 392 per Moffitt JA, with whom Manning JA agreed. 31 It is accepted that a Magistrate in committal proceedings is performing an administrative, as opposed to a judicial function: Lamb v Moss & Brown (1983) 49 ALR 533 at 559 per Bowen CJ, Sheppard and Fitzgerald JJ. There is no general rule that requires reasons to be given for administrative proceedings: Public Service Board v Osmond (1985) 159 CLR 656 at 662 per Gibbs CJ with whom Brennan, Deane and Dawson JJ agreed. 32 In this instance, however, the Magistrate was required by s 48E(7) of the Justices Act 1902 (NSW) to provide reasons for his decision to refuse the accused's application. The plaintiff is, therefore, correct in his submission that failure, on the part of the Magistrate, to give reasons in refusing an application under s48E would be an error of law.

33 A Magistrate's decision must be viewed in the context in which it was made. In this instance, Magistrate Longley's decision was delivered ex tempore and, it is accepted, is rather brief. However, the Local Court of New South Wales manages a busy list and should not be unduly criticised for succinct reasons. As Kirby P stated in Acuthan v Coates (1986) 6 NSWLR 472 at 479: It is the substance of what the Magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on Magistrates. 34 However, where a Magistrate has not analysed the information presented, to the extent that the process of reasoning resulted in a failure to satisfy the requirements of s 48E, it may be appropriate for the Court to intervene: Leahy v Price (Supreme Court, 28 September 1998) per Adams J. Intervention would particularly be called for where the Magistrate's decision indicates error, as O'Keefe J found in O'Hare v DPP [2000] NSWSC 430 at [72]: In any event, the Magistrate must make the reasons for doing (or not doing) what he or she did (or did not do), clear. Furthermore, the substance of what was done by the Magistrate must accord with the statutory powers conferred and statutory duties imposed upon the Magistrate. This too must be clear from what was said and done by the Magistrate. Finally, in some cases it is appropriate to examine the end point reached by the Magistrate and compare that with the end point that would be arrived at if the matter had been dealt with in accordance with law and a proper exercise of the jurisdiction conferred had been effected. 35 Here, on the face of it, the decision of the Magistrate does not "bespoke error". The evidence of the complainant was that of recognition, and not of identification as is contended by the plaintiff. Any cross-examination, it would seem, would focus on the credibility of the complainant which, on its own, is not sufficient to satisfy the requirement of special reasons imposed by s 48E: O'Hare v DPP [2000] NSWSC 430 at [39] per O'Keefe J discussing Goldsmith v Newman (1992) 59 SASR 404 at 410 per King CJ with whom Perry and Duggan JJ agreed. The Magistrate clearly identifies this and concludes that it does not constitute special reasons for the purposes of s 48E: The evidence that he would give it would seem goes specifically to the event and his knowledge of the defendant… 36 The question of the strength or weakness of the Crown case was also raised by the plaintiff as an issue that was not properly considered by the Magistrate. This is unquestionably a relevant issue for a Magistrate in making a determination on a s 48E application: B v Gould and Director of Public Prosecutions (1993) 67 A Crim R 297 at 303 per Studdert J; O'Hare v DPP [2000] NSWSC 430 at [51] per O'Keefe J. However, there is no indication that Magistrate Longley did not take this into account in making his determination. He in fact refers to other evidence which he considers would satisfy the elements of the offence: Page 2, Annexure C, Affidavit of HC Langley sworn 30 January 2004. 37 The plaintiff further argues that the Magistrate did not consider the totality of the matters before him as required: Lawler v Johnson & Anor (2002) 56 NSWLR 1 at 10 per O'Keefe J. To the contrary, I am persuaded that the Magistrate read and considered all of the evidence and submissions put to him by both parties on the application. 38 I am not satisfied that Magistrate Longley erred in law in his refusal of Mr. Tez's application under s 48E of the Justices Act 1902 (NSW). I certainly am not persuaded that he failed to exercise his jurisdiction correctly. Nor am I satisfied that his brief reasons constitute an error of law; they are adequate to satisfy the section. 39 The plaintiff argues that Magistrate Longley failed to consider the evidence before him. From the transcript (Page 1, Annexure C, Affidavit of HC Langley sworn 30 January 2004) it is evident that His Worship had before him several documents being: a. the police facts sheet dated 30 May 2003; b. the witness statement of Mitchell Looyen dated 26 October 2003, going to alibi; c. submissions on the application prepared by the accused's solicitors dated 15 October 2003, including a document outlining proposed areas of cross-examination of each witness; d. Crown submissions in reply to the application dated 20 October 2003; and e. Further submissions on the application prepared by the accused's solicitors dated 13 November 2003 including a slightly altered version of the document outlining the proposed areas of cross-examination. f. Undated Crown submissions in further reply to the submissions of the accused.

Magistrate Longley, before handing down his decision on the application, states that he has read all of these materials, and then gives the applicant the opportunity to add to them. Ms Barnes, the solicitor for the applicant, clearly declined to do so, and both parties then agreed that the written submissions adequately address the issues needed to be considered by the Magistrate: Page 1 - 2, Annexure C, Affidavit of HC Langley sworn 30 January 2004. 40 The Magistrate's reasons, though brief, do not disclose a lack of consideration of the evidence before him. The plaintiff's submissions do not persuade me in this respect. I agree that it is evident that the Magistrate only considered the above documents, though it is difficult to see how he could have been expected to consider any other material or submissions when none was provided. The plaintiff complains that Magistrate Longley did not read the witness statement of the complainant, and those of other relevant witnesses. These statements, which have been provided to me on hearing this matter, and which appear to be both useful and relevant, were not provided to the learned Magistrate at the time of the hearing of the application. A similar issue as to the amount of material before a Magistrate arose in McKirdy v McCosker [2002] NSWSC 197; (2002) 127 A Crim R 217 at [33] where His Honour Howie J stated: This Court's jurisdiction to review the exercise of a magistrate's jurisdiction must take into account the material upon which he or she was asked to exercise that jurisdiction. Further, mandamus is a discretionary relief, and a significant matter in that regard is a consideration of how the matter about which complaint is made to this Court was conducted before the Magistrate.

The Magistrate cannot be criticised for failing to consider evidence that was not put before him. No error of law, on the part of the Magistrate, arises in this respect.

Orders 41 I am not satisfied that Magistrate Longley erred in law in the exercise of his discretion or failed to exercise his jurisdiction. It was open to him to make the decision which he reached. 42 The summons is dismissed. 43 The plaintiff is to pay the defendants' costs of the application. **********

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