New South Wales Supreme Court CITATION : Evans -v- DPP [2000] NSWSC 391 FILE NUMBER(S) : SC 10349/00 HEARING DATE(S) : 03/04/00 JUDGMENT DATE : 3 April 2000 PARTIES : Clara Lynette Evans Department of Public Prosecutions JUDGMENT OF : Dowd J at 1 LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Mr Cocks M JUDICIAL OFFICER : COUNSEL : Mr Pearce (App) Mr Lakatos (Crown) SOLICITORS : CATCHWORDS : s.48E application - special reasons LEGISLATION CITED : Crimes Act 1900 Justices Act 1902 Hannah v Kearney & Anor (unreported, CCA 28 May 1998) R v Barker (9183) ALJR 426 R v Lopatta (1983) 35 SASR 101 CASES CITED : R v Skivington (1968) 1 QB Div 166 Saffron v DPP (1989) 16 NSWLR 418 R v Losurdo 101 A Crim R 162 R V kennedy (1997) 94 A Crim R 341 DECISION : Application aceeded to THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DOWD J MONDAY 3 APRIL 2000 10349/00 - CLARA LYNETTE EVANS v DEPARTMENT OF PUBLIC PROSECUTIONS 1 This is an appeal by way of summons under s.104(3) of the Justices Act 1902 ("the Act") whereby the applicant appeals to this Court against an order made in committal proceedings on a ground that involves a question of law alone but only with the leave of the Supreme Court. 2 I have heard the leave application and the substantive appeal as one submission with the concurrence of the parties and I commend them for that sensible course. 3 The issue that arose before the learned Magistrate was an order made by Mr Cocks M on Thursday 25 November 1999 in an application made before him on behalf of the applicant for an order under s 48E(2)(b) that a witness attend to be cross-examined in relation to a matter that I will outline shortly. 4 This summons, as well as seeking leave, seeks as a substantive order that the order refusing the attendance of the Crown witness, Betty Simmons, to give oral evidence be quashed and to substitute an order ordering her to attend for such purpose. Alternatively, seeking an order that the Magistrate determine the S 48E application and direct Betty Simmons to attend. I have already made an order extending the time for filing of the summons by the consent of the respondent. 5 The committal proceedings involved a charge under s.112(2) of the Crimes Act 1900 ("the Crimes Act") being a charge against the applicant that she did break and enter the house of Betty Simmons and did commit a felony, namely an assault on Simmons occasioning her actual bodily harm in circumstances of aggravation, namely, the applicant maliciously inflicting bodily harm on Simmons. There was in fact a back-up charge which does not involve the element of break, enter and steal but that is, in this application, beside the point, since it is the substantive charge or a more serious charge which is before that Local Court. 6 The facts before the Magistrate were that on 23 June 1999 the applicant's de facto, Danny Smith, attended at Simmons' address; he was intoxicated and had requested to go to the toilet. He went to the toilet and a short time later was asleep on the floor. The applicant came to the premises, bashed on the door seeking access and tendering some verbal abuse to Simmons. The applicant broke into the premises, breaking the security chain, then assaulted Simmons fairly violently, who escaped, and the applicant and Smith departed. 7 Police interviewed the applicant and Smith, the latter pleading with some cogency that he was drunk. 8 At the hearing on 25 June application was made for a direction on the applicant's behalf required Simmons' attendance for the purpose of being examined. The application was not put before the Court with sparkling clarity and Mr Lakatos, for the respondent, has quite correctly pointed out the decision of Studdert J in Hannah v Kearney & Anor that the application to cross-examine requires identification and consideration of the objective of the cross-examiner in the framework of the prosecution case. That is reported in Butterworths Unreported Judgments of 28 May 1988 as approved by the New South Wales Court of Appeal (1998) 44 NSWLR 618 at page 620D to E and 626G and following. 9 Mr Pearce for the applicant indicated that his application was under s 48E(2)(b) of the Act and he indicated that it was the breaking and entering aspect of the s 112 of the Crimes Act offence which is the component which takes the matter into the District Court and makes it a more serious offence. He referred to Simmons' evidence about moving Smith's car and that Simmons, having locked the car, took the keys to the vehicle inside her home. 10 Mr Pearce referred to the decision of R v Barker, a decision of the High Court reported at 1983 ALJR p 426 and a South Australia decision of R v Lopatta (1983) 35 SASR 101 and referred to those cases to underline the element of the offence that he wished to explore, the point of the exercise being that he wished to explore the claim of right of the applicant in that in breaking and entering those premises that she had a claim of right to enter the premises because her keys were within the house and as such has a defence option to her of an entitlement to break and enter, that being a crucial element of the offence. Notwithstanding she may not have any defence to the other aspect of the charge, nevertheless every element of that charge has to be proven and the fact that there is a back-up point is not to the point. 11 Mr Lakatos for the Director of Public Prosecutors, with customary frankness, concedes, on the authority of R v Skivington (1968) 1 QB Div at 166, that it is sufficient for the defence to be open as to a claim of right, notwithstanding that that claim of right may not ultimately be made out to entitle the defence to be raised. 12 Mr Pearce argued that in the light of the claim of right that it was desired to test the witness Simmons as to, to use his words, "the lead up to it", he then said he was happy to deal with this on the basis of special circumstances. 13 The learned Magistrate, in a fairly short ex tempore judgment, in refusing the application in which he expressed to be applying special circumstances, had a process of reasoning which related to the obtaining of the motor vehicle and his Worship asserted that there was a witness to the factual issue who had declined to make a statement to the police and is making his services available to the applicant, the defendant in the proceedings. His Worship adverted to the fact that there were dangerous objects where a person who may be available to give a version of the events is available but wants to wait until the prosecution witness is cross-examined, notwithstanding what his Worship describes as "protective mechanisms put in force for that, to protect those persons from being cross-examined". His Worship then said at p 6 of the transcript: "At this stage the alternative view has never been put forward to any investigating authority and to my mind there are inherent dangers in allowing a complete scrutiny of this particular witness' version and there becomes an inherent danger that persons, whoever they be, can tailor their version in accordance with the particular version that is delivered." 14 His Worship then went on to say: "I believe the interests of justice are such that the witness, the victim in this matter, and it is a matter where some violence, but not the violence to the level that is indicated in the Act, deserved the protection of the section and I do not believe that in this instance special reasons have been established and I refuse the application." 15 The applicant's case before this Court is that the applicant raises the following questions: whether his Worship was wrong in law in determining the applicant's application before him on the basis of an absence of special reasons thereby determining the application pursuant to the wrong test or whether, even if his Worship had inadvertently used special reasons as against substantial reasons when delivering the judgment, if he was correct in concluding that no substantial reasons pursuant to s 48E of the Act had been demonstrated. 16 It is put by Mr Pike on behalf of the applicant that his Worship, who was asked about the matter subsequently, could not correct the record as there is no procedure available for the learned Magistrate. 17 I consider what his Worship said on the subsequent occasion, 22 December, where he said he needed substantial rather than special reasons, is not something that I can take into account. However, in looking at the way in which his Worship, who was referred at several points to "substantial reasons" although in his judgment he referred to special circumstances, I do consider in the context of the hearing that his Worship inadvertently used the words "special circumstances" and in fact intended to use the word "substantial" where he meant special. There was no complaint at the time by either legal representative and I have no evidence before me that leads me to the view that his Worship was endeavouring to apply the correct test. 18 However, I turn to the second issue and in that respect I have been referred to the decision of Priestley JA in Saffron v DPP reported at (1989) 16 NSWLR at p 418 where his Honour referred to the difference between the real, although possibly substantive, mistake in performance by a Magistrate of a duty imposed upon him and a performance of that duty which was not relevantly real and referred to the fact that his Honour Jordan CJ in ex parte Hebburn re Kearsley Shire Council (1947) 47 SR (NSW) 416 referred to a magistrate's constructive failure to exercise jurisdiction. 19 It seems to me that his Worship in his reasons for judgment failed to constructively exercise jurisdiction when determining the issue. His reasoning relates to whether a witness is available and can be called by the applicant as defendant and his Worship does not apply the tests as set out by Hidden J in Losurdo reported at 101 A Crim R 162 at 166 as subsequently approved by the Court of Appeal as I have earlier cited. The test his Honour outlined refers to the decision of Hunt CJ at CL in Kennedy (1997) 94 A Crim R 341, who was then referring to interpretation of the then s.48E(a) at 351 and 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 in an unduly restrictive way; what must be shown is that such evidence will serve the true purpose of committal proceedings, which exist in order to achieve a fair trial.." 20 What his Honour there outlined and emphasised was the width of the test that was available. It must be something which would make a significant contribution to the achievement of a fair trial. 21 The essence of what Mr Pearce was seeking, which was not as clearly expressed as it might have been, as I have pointed out, is the entitlement to test the claim of the defence of a claim of right when entering the premises. That is testing the prosecution case on a fairly limited area. It does not go to the question of whether Danny Smith, the other witness, should have been available or not, it goes to a crucial element of the more serious charge and, although it is of an extremely narrow compass, nevertheless is a significant element, as pointed out in Barker's case, and is a significant issue in the prosecution of these proceedings. 22 Therefore, I consider, in the light of the constructive failure to apply the substantial reasons test as outlined in Losurdo, above cited, that I should accede to the application of the applicant. 23 I therefore make an order in terms of paras 1, 3 and 4 of the summons of the applicant. 24 An application for costs has been made. It is put by Mr Lakatos that this matter would not have come before this Court if the issues had been put in the lower court. I consider that although the issues were not put with the clarity that is clearly desired, that, nevertheless, the applicant has succeeded in the application before the Court and the costs should follow the event and I order that the respondent pay the applicant's costs of the proceedings. Last Modified: 09/25/2000 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.