JW v Director of Public Prosecutions [1999] NSWSC 1244

New South Wales Supreme Court CITATION : JW v Director of Public Prosecutions [1999] NSWSC 1244 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 30065/99 HEARING DATE(S) : 20 October 1999 JUDGMENT DATE : 16 December 1999

PARTIES : JW - Plaintiff Director of Public Prosecutions - Defendant JUDGMENT OF : Simpson J at 1

LOWER COURT JURISDICTION : Children's Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

COUNSEL : P Lakatos - Plaintiff F Corsaro - Defendant SOLICITORS : T A Murphy - Plaintiff S E O'Connor - Defendant CATCHWORDS : Crimes Act 1900 ACTS CITED : Supreme Court Act 1970 Evidence Act 1995 Justices Act 1902 Ex parte Hebburn Limited; re Kearsley Shire Council (1947) 47 SR (NSW) 416 CASES CITED : Saffron v DPP (1989) 16 NSWLR 397 Hanna v Kearney; Mileshkin v Commonwealth Director of Public Prosecutions, unreported, 28 May 1998 per Studdert J. Director of Public Proseccutions v Losurdo (1998) 44 NSWLR 618 DECISION : Declaration that, on 2 July 1999, the second defendant erred in rejecting applications for the attendance at committal proceedings of witnesses pursuant to s 48E of the ustices Act 1902; Order that the second defendant reconsider the application according to law.

THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION

SIMPSON J

16 December 1999

30065/99 JW v DIRECTOR OF PUBLIC PROSECUTIONS

JUDGMENT HER HONOUR : 1 The plaintiff, JW, who was born on 29 September 1981 and who is now eighteen years of age, is charged with one count of break enter and steal in circumstances of aggravation (under s 112(3) of the Crimes Act 1900) and with the murder of Ralph Terrence Mason. Both offences are alleged to have been committed on the same day, 11 January 1999, at Berkeley. Committal proceedings under the Justices Act 1902 ("the Act") to take place in 2000 involve both the plaintiff and another juvenile, TP, jointly charged with the plaintiff. A broad overview of the prosecution case is to be found in a police fact sheet. Put shortly, the prosecution case is that, a little after midnight on 11 January, the plaintiff, with a number of other young men, went to Mr Mason's house with the intention of stealing a video recorder. They were wearing balaclavas. The plaintiff was armed with a knife. A struggle took place during which Mr Mason was stabbed a number of times as a result of which he died. Crown witnesses assert that it was the plaintiff who stabbed Mr Mason and that he also hit Mr Mason on the head a number of times with a steel bar. 2 During the course of the present proceedings I was told that the plaintiff had participated in an electronically recorded interview in which he admitted to having been present at or about the time of the death. 3 Pursuant Pt 4, Division 1, Sub-Division 7A of the Act, the prosecution has served on the plaintiff a number of statements of witnesses whom it proposes to call at a trial in the event that the plaintiff is committed for trial. The plaintiff's legal representatives sought directions pursuant to s 48 E (2)(b) that the signatories of ten of the statements attend for cross-examination. With the exception of one such witness the magistrate, the second defendant, refused to direct attendance. The one witness whose attendance the magistrate did direct is CP, a brother of TP, the plaintiff's co-accused. 4 By summons filed on 8 September 1989 the plaintiff challenges that decision, claiming a declaration that the second defendant was in error in rejecting the application for the directions, and an order that he re-consider the applications according to law. The source of power relied upon for the orders sought is s 69 of the Supreme Court Act 1970 which abolishes the jurisdiction of this Court to grant writs, but preserves its jurisdiction to make orders of that nature. It is well established that an order for mandamus (or an order in the nature of an order for mandamus) will be made only where the magistrate has failed to perform the duty imposed upon him. The same limitations apply to the power to make a declaration of the kind claimed. Such failure may be demonstrated by the application of an incorrect test or a misunderstanding of the nature of the opinion the magistrate must reach in order to decide the question before him or her: Ex parte Hebburn Limited; re Kearsley Shire Council(1947) 47 SR (NSW) 416; Saffron v DPP (1989) 16 NSWLR 397. 5 S 48E(2)(b) provides that a direction to a witness to attend for cross-examination may be given, relevantly, only where the magistrate is of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. Obviously, individual consideration must be given to every witness in respect of whom an application for a direction is made, and to the basis on which the application is made: see Hanna v Kearney; Mileshkin v Commonwealth Director of Public Prosecutions, unreported, 28 May 1998, per Studdert J. 6 The ambit of s 48E(2)(b) has at least twice been considered by this Court, and at least once by the Court of Appeal: Hanna, supra; Charles Losurdo (1998) 101 A Crim R 162, per Hidden J; and on appeal, Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618. 7 It is not possible to define the boundaries of "substantial reasons" in this context: Losurdo, C of A, pp 622, 632. A potential narrowing of the issues to be determined at trial, if the defendant is committed, is within the term; so also is the possibility of establishing the foundation for a challenge to the admission or admissibility of evidence (Hanna p 8; Losurdo, C of A pp 631-2); the possibility of significantly undermining the credibility of a Crown witness (Losurdo, C of A p 631); clarification of the evidence proposed to be called so as to avoid a defendant being taken by surprise at a trial (Losurdo, C of A, p 631); and the opportunity of gaining relatively precise knowledge of the case against the defendant (Hanna, p 5). 8 There may well be other reasons, that qualify as substantial, for a direction that a witness attend for cross-examination. It has to be borne in mind, as Hidden J pointed out in Losurdo at first instance, that a properly conducted committal might benefit the prosecution as much as the defence. While a successful attempt to undermine the credit of a Crown witness would benefit the defence, an unsuccessful attempt to do so could result in the decision of an accused person to plead guilty. In my opinion exploring the strength of the Crown case is, at least to a point, a legitimate objective of cross-examination at committal, although defendants plainly cannot be given the unbridled rein they previously had. The significance of the evidence to be adduced from a particular witness in the Crown case is clearly a relevant consideration. 9 Assessment of what is sought to be achieved by cross-examination is an important aspect of the decision making process. This is because the objective may vary in relation to different witnesses. That is why it is necessary for the magistrate to consider the reasons advanced in support of the application individually in relation to each of the witnesses in respect of whom a direction is sought. Balanced against those reasons must be the clear intention of the legislature to limit the excessive time taken and inconvenience to witnesses that had, it has been said, in the past attended the conduct of committal proceedings uninhibited by the regime provided by s 48E. 10 The statements of the various witnesses in question were put before me. A number of the witnesses were, at the time of their statements, under eighteen years of age, and I propose to refer to them by initials. Also put before me were written submissions made on behalf of the plaintiff, TP, and the prosecution in relation to the application before the magistrate. In the submissions made on behalf of the plaintiff the prosecution witnesses whose attendance was sought were divided into five categories and the reasons contended to be substantial were identified. The five categories of witnesses were: